(1) In General. A pleading must state as a counterclaim any claim that – at the time
of its service – the pleader has against any opposing party when the pleading is served, if the
claim:

(A)it arises out of the transaction or occurrence that is the subject matter of the
opposing party's claim; and

(B) does not require adding another party overfor its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction.

(2) Exceptions. TheBut the pleader need not state the claim if:

(1) at the time(A) when the action was commenced, the claim was the subject of
another pending action,; or

(2)(B) the opposing party brought suit upon thesued on its claim by attachment or
other process by which the court did not acquire personal jurisdiction to render a personal
judgment on thepleader on that claim, and the pleader is not stating adoes not assert any
counterclaim under this rule.

(b) Permissive counterclaimsCounterclaim. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction or occurrence that is
the subject matter of the opposing party's claim.

(c) Relief Sought in a Counterclaim exceeding or less than opposing claim. (1) A
counterclaim may or mayneed not diminish or defeat the recovery sought by the opposing
party. It may claimrequest relief exceedingthat exceeds in amount or differentdiffers in kind
from thatthe relief sought in the pleading ofby the opposing party.

(2) In an action upon contract for the recovery of money only, when the defendant by
his answer shall not deny the plaintiff's claim but shall set up a counterclaim amounting to
less than the plaintiff's claim, the plaintiff may have judgment as upon default for the excess
of his claim over such counterclaim. In such case, the plaintiff shall file with the clerk of the
court a statement admitting such counterclaim, which statement shall become a part of the
judgment roll.

(d) Counterclaim Against the State. These rules shalldo not be construed to enlarge
beyond the limits now fixed by lawexpand the right to assert counterclaimsa counterclaim
– or to claim creditsa credit – against the state of North Dakota or ana state officer or
agency thereof.

(e) Counterclaim Maturing or Acquired after Pleading. With permission of theThe
court,may permit a party who has served ato file a supplemental pleading may present asasserting a counterclaim by supplemental pleading a claim that either matured or was
acquired by the party after theserving an earlier pleading was served.

(f) Omitted Counterclaim. By leave of court, a pleader who fails to set up a
counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires,
may set up the counterclaim by amendment.

[Abrogated]

(g) Cross-claimCrossclaim Against a Coparty. A pleading may state as a cross-claimcrossclaim any claim by one party against a coparty arisingif the claim arises out of the
transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein, or relatingif the claim relates to any property that is the subject matter
of the original action. Such cross-claimThe crossclaim may include a claim that the party
against whom it is assertedcoparty is or may be liable to the cross-claimantcrossclaimant
for all or part of a claim asserted in the action against the cross-claimantcrossclaimant.

(h) Joinder ofJoining Additional Parties. Persons other than those made parties to the
original action may be made parties to a counterclaim or cross-claim in accordance with the
provisions of Rules 19 and 20 govern the addition of a person as a party to a counterclaim
or crossclaim.

(i) Separate trials-; Separate judgment Judgments. If the court orders separate trials
as provided inunder Rule 42(b), it may enter judgment on a counterclaim or cross-claimcrossclaimmay be rendered in accordance with the terms ofunder Rule 54(b) when the courtit has jurisdiction to do so to do, even if the opposing party’s claims of the opposing party
have been dismissed or otherwise disposed ofresolved.

EXPLANATORY NOTE

Rule 13 was amended, effective March 1, 1990; ________________.
Rule 13 is substantially identical to Rulebased on Fed.R.Civ.P. 13, FRCivP, with
the addition of subdivision (c)(2) and referring to counterclaims against the State, rather
than the United States, in subdivision (d). This rule prescribes procedure to be followed in
the use of counterclaims and cross-claimscrossclaims.
Rule 13 was amended, effective _______________, in response to the December
1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization
of the rule were changed to make the rule more easily understood and to make style and
terminology consistent throughout the rules.Subdivision (f), which set out standards for amending pleadings to add a
counterclaim, was abrogated, effective ______________, to track the 2009 federal
amendment. The subdivision was redundant of Rule 15, which sets out standards for
amending pleadings in general.
Subdivision (c)(2) is derived from N.D.R.C. 1943 § 28-0907was transferred to
Rule 55, effective ________________.
In 1971, subdivision (a)(2) was added and subdivision (h) was amended to include
a reference to Rules 19 and 20.
Rule 13 was amended, effective March 1, 1990. The amendments are technical in
nature and no substantive change is intended.
Sources: Joint Procedure Committee Minutes of ________________;January 24,
2008, pages 18-19; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21,
1979, pages 8-9, Rule Fed.R.Civ.P. 13, FRCivP.